‘The Dispute Here Is Not Merely Academic’: Libit v. UNM Foundation Goes to N.M. Supreme Court

Nearly six years after I filed an open records lawsuit against the University of New Mexico’s fundraising arm, the state’s highest court will now decide whether the school (and other government agencies) can continue playing hide the ball with the public’s right to know.

By Daniel Libit

After prevailing in the district and appellate courts, my public records lawsuit against the University of New Mexico Foundation and Lobo Club has matriculated to the New Mexico Supreme Court.

On Friday, my attorney Nick Hart submitted our answer brief, arguing that the Court should affirm the rulings of the lower courts, which previously found that UNM’s direct support organizations produce and maintain records subject to the state’s open records laws. You can read the full brief here.

It’s approaching the six-year anniversary since I filed my original Inspection of Public Records Act complaint against the UNM Foundation, in March 2017. The litigation grew out of my reporting for this blog. I won the case on summary judgment in May 2018, a ruling which was affirmed by the New Mexico Court of Appeals this past spring. All the while, as we note in our brief, the happenings of Loboland have only further bolstered the public interest arguments in favor of our case.

"The dispute here is not merely academic. It invokes the real-world consequences of unchecked government authority. Records sought by Mr. Libit have since been found to relate to financial malfeasance at the University of New Mexico, resulting in public scandal, government investigations, and even the indictment of the University’s former Athletics Director."

That former athletic director is Paul Krebs, who joined an extraordinarily exclusive club of erstwhile Division I AD’s (Penn State’s ex, Tim Curley, is the only other name that comes to mind) criminally indicted over their work-related activities. Krebs is now set to stand trial in July. He is accused by state prosecutors of orchestrating a plan to cover up the misappropriation of public monies with a $25,000 anonymous donation to the Foundation–done in cahoots with the Foundation’s vice president of development. A number of the documents I sought related to this alleged scheme, and other collaborations between him and the Foundation.

In September, the Foundation and Lobo Club threw the kitchen sink in defense of their secrecy, invoking everything from the etymology of the word “purview,” to the First Amendment rights of Lobo boosters.

My favorite defense–if I may say so–is the appellants’ suggestion that there is already sufficient “accountability and transparency” mechanisms in the state’s Public Finances Act, so, therefore, their organizations needn’t be subject to additional public scrutiny. To which we say in our brief:

This statement epitomizes Appellants continuous efforts to thwart accountability and transparency by wrongfully withholding critical records that the public has a right to inspect. The vindication of this right has already been adopted by the Legislature and announced by the New Mexico Court of Appeals: The University of New Mexico Foundation and the University of New Mexico Lobo Club must disclose records of their operations and activities because they create or maintain records on behalf of the University of New Mexico.

Charmingly, the foundation for UNM’s home-state rival, New Mexico State University–whose supporters, alumni and leaders enthusiastically cheered on my digging into the Lobos–has since written an amicus brief in support of the UNM Foundation’s and Lobo Club’s obscurantism. After all, everyone likes the idea of government transparency, until it complicates their own, furtive missions.

Daniel Libit is a reporter for Sportico, the national sports business publication. He previously founded NMFishbowl.com and The Intercollegiate. You can follow him on Twitter or email him at dlibit@sportico.com.

Featured image courtesy of Austin Fisher/Source NM